ORANGE SLOVENSKO, A.S. proti Slovensku

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43983/02
by ORANGE SLOVENSKO, a.s.
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 24 October 2006 as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,

and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 6 December 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company,

Having deliberated, decides as follows:

THE FACTS

The applicant is a joint stock company which was established in 1996 and has its registered office in Bratislava. Since 2002 the name of the applicant company has been Orange Slovensko, a.s. It operates a mobile phone network in Slovakia. It is represented before the Court by Mrs E. Csekes, a lawyer practising in Bratislava. The respondent Government are represented by Mrs A. Poláčková, their Agent.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Under a contract of 1996 between the applicant company and the Slovak Intelligence Service (Slovenská informačná služba – “the SIS”), which was supplemented by an annex of 1997, the applicant company cooperated with the SIS in its monitoring of telecommunication traffic (“interception”) in the applicant company’s network. The cooperation included adjustments to the applicant company’s switchboards.

At that time the SIS’s role and powers of interception were laid down in section 20 (2) of the Telecommunications Act of 1964 (Law no. 110/1964 Coll., as amended). This provision contained no express rules as to who was to finance the interception and the equipment necessary for it (“interception equipment”). According to the Government, however, the provision was in practice understood as imposing the duty to finance the interception equipment on the operators of telephone networks.

On 1 July 2000 the Telecommunications Act of 2000 (Law no. 195/2000 Coll.) entered into force. It replaced the Telecommunications Act of 1964. Under section 9 (6) the applicant company had a duty towards law‑enforcement and State defence and security authorities to provide, at its own cost, the means for interceptions in its network. The scope and technical specifications of the interception equipment were to be approved by the Telecommunications Office of the Slovak Republic (Telekomunikačný úrad Slovenskej republiky).

In a letter of 8 January 2001 the SIS requested that the Telecommunications Office authorise an extension of the interception equipment used in the applicant company’s network. The request concerned the existing equipment, which had been procured in 1997 and now had to be extended on account of the expansion and modernisation of the applicant company’s network. The police and the Ministry of Defence, who were also involved with interception, supported the request.

The request was granted on 28 May 2001, but the decision was quashed on 3 July 2001 on appeal (rozklad) on account of formal shortcomings.

On 13 July 2001 the Telecommunications Office held a hearing. It was attended by representatives of the applicant company, the SIS and the ministries of the interior, defence, justice, finance, and transportation, post and telecommunications.

On 26 July 2001 a representative of the applicant company was allowed to consult the case file. Following the consultation, on the same day, the Telecommunications Office again authorised the extension sought. It was understood that, by virtue of section 9 (6) of the Telecommunications Act of 2000, it was the applicant company alone that was to bear the costs of the extension.

At the same time the Telecommunications Office ruled that the authorisation would become effective immediately even if the decision as such were to be appealed against. This ruling was based on the pressing general interest which the Telecommunications Office found in the need to ensure the proper functioning of the State organs and agencies whose task was to monitor telecommunications.

On 18 September 2001 the Director of the Office dismissed an appeal by the applicant company as unfounded.

The applicant company challenged the decisions of 26 July and 18 September 2001 by an administrative‑law action in the Supreme Court (Najvyšší súd). As in the proceedings before the Telecommunications Office, the applicant company did not object to the duty to contribute to the financing of the interception equipment as such, but merely to the scope of that duty as established by the Telecommunications Office. The applicant company further argued that the procedure and the decisions had been arbitrarily classified as “secret”; that the extension took no account of the applicant company’s technical, staffing and financial capacity; and that no cost-benefit analysis had been carried out. The extension was therefore at variance with the applicant company’s property rights guaranteed under the Constitution and Article 1 of Protocol No. 1.

On 23 April 2002 the applicant company lodged an application requesting the Supreme Court to stay the proceedings under Article 109 § 1 (b) of the Code of Civil Procedure and initiate proceedings in the Constitutional Court (Ústavný súd) with a view to reviewing the compliance of section 9 (6) of the Telecommunications Act of 2000 with the relevant provisions of the Constitution and with Article 1 of Protocol No. 1.

On 25 April 2002 the Supreme Court dismissed the action. It observed that the Telecommunications Office had held a hearing and that its decision had been delivered publicly. Classifying the proceedings as “secret” was not excluded by law and had not curtailed the applicant company’s procedural rights. The Supreme Court also held that section 9 (6) of the Telecommunications Act of 2000 unequivocally imposed on the applicant company the financial burden of the equipment in question. It was for the Telecommunications Office to specify the scope and technical features of the equipment, which it had rightly done. As to the applicant company’s constitutional and Convention objections, the Supreme Court “discerned no violation of the applicant company’s constitutional rights”. No decision was taken and no opinion was expressed in respect of the applicant company’s application of 23 April 2002 to stay the action and challenge the constitutionality of the relevant provisions of the Telecommunications Act of 2000. No appeal lay against that judgment and, upon service on the parties, it became final on 13 June 2002.

The applicant company complied with the above decisions and accordingly incurred financial expense.

In October 2002 the applicant company requested the Prosecutor General to exercise his discretionary power to challenge section 9 (6) of the Telecommunications Act of 2000 in the Constitutional Court as being contrary to the Constitution and the Convention. The Prosecutor General acceded to the request.

On 1 January 2004 the Electronic Communications Act (Law no. 610/2003 Coll.) entered into force. Section 13 (2) (j) of that Act provided for a similar duty in respect of financing interception equipment as section 9 (6) of the Telecommunications Act of 2000.

The Prosecutor General subsequently withdrew his constitutional challenge in respect of section 9 (6) of the Telecommunications Act and the proceedings in respect of it were discontinued without any decision being given on the merits.

In January 2005 the applicant company again requested the Prosecutor General to exercise his discretionary power and challenge section 13 (2) (j) of the Electronic Communications Act of 2003 in the Constitutional Court as being contrary to the Constitution and the Convention. From the official internet page of the Constitutional Court (http://www.concourt.sk) it appears that the Prosecutor General lodged the challenge on 21 July 2006 and that it is still pending.

B. Relevant domestic law and practice

1. The Constitution (Constitutional law no. 460/1992 Coll., as amended)

Article 125 § 1 (a) provides:

“The Constitutional Court shall have jurisdiction to determine the compliance of statutes with the Constitution, constitutional statutes and international treaties which have been assented to by the National Council of the Slovak Republic and ratified and promulgated in the manner required by statute.”

Article 127, as in force from 1 January 2002, reads as follows:

“1. The Constitutional Court shall decide complaints by natural or juristic persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.

3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.

4. The liability for damage or other loss of a person who has violated another person’s rights or freedoms within the meaning of paragraph 1 shall not be affected by the Constitutional Court’ s decision.”

Pursuant to Article 130 § 1:

“The Constitutional Court shall open proceedings on an application by

a) no less than one fifth of the deputies of the National Council of the Slovak Republic,

b) the President of the Slovak Republic,

c) the Government of the Slovak Republic,

d) a court of law,

e) the Prosecutor General

f) any person whose rights are the subject of proceedings under Articles 127 and 127a [of the Constitution].”

Article 154c provides:

“1. International treaties on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order and take precedence over national laws provided that such international treaties guarantee more extensive constitutional rights and freedoms.

2. Other international treaties ratified by the Slovak Republic and promulgated under statutory requirements existing prior to the entry into force of this constitutional law shall be part of the national legal order if so provided by statute.”

2. Constitutional Court Act (Law no. 38/1993 Coll., as amended)

Details concerning the status of the Constitutional Court and of the procedure before it are laid down in the Constitutional Court Act.

Under section 20 (3), which applies to all types of proceedings before the Constitutional Court, as a general rule, the scope of the Constitutional Court’s examination of a case is limited by the summary of the application for commencement of the proceedings, as formulated in a standardised and prescribed form by the plaintiff.

Specific rules applicable in respect of complaints under Article 127 of the Constitution are laid down in sections 49 et seq.

Under section 53 (1) a constitutional complaint is not admissible if the complainant has not exhausted effective remedies that are available to him or her in respect of the rights and freedoms in question.

Section 53 (3) provides that a constitutional complaint can be lodged within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which notice of other interference has been given. As regards measures and other interferences, the above period commences when the complainant could have become aware of them.

3. Constitutional Court’s Practice

(a) Temporal jurisdiction of the Constitutional Court to examine complaints under Article 127 of the Constitution (as in force from 1 January 2002)

A complaint under Article 127 of the Constitution, as in force from 1 January 2002, cannot be directed against violations of fundamental rights which took place before 1 January 2002 (see, for example, the decision of 9 May 2002, file no. II. ÚS 72/02).

(b) Jurisdiction of the Constitutional Court in relation to jurisdiction of the ordinary courts

The Constitutional Court has no power of alternative or extraordinary review in respect of matters that fall within the jurisdiction of the ordinary courts (see, for example, the decision of 10 January 1995, file no. II. ÚS 1/95). As a matter of principle, the Constitutional Court has no power to review factual findings and legal conclusions of the ordinary courts (see, for example, decision of 16 May 1996, file no. II. ÚS 21/96) or to scrutinise their interpretation and application of the law (see, for example, decision of 20 August 1998, file no. I. ÚS 52/98). The jurisdiction of the Constitutional Court is subsidiary and applies only to matters that fall outside the jurisdiction of the ordinary courts (see decision of 14 February 2001, file no. II ÚS 13/01). The Constitutional Court can examine decisions of the ordinary courts as such only if they are “manifestly ill-founded or arbitrary” (see, for example, decision of 19 April 2001, file no. I. ÚS 17/01). Apart from that, the Constitutional Court’s role is principally limited to examining whether the effects of the ordinary courts’ decisions are compatible with the Constitution and applicable international instruments (see, for example, decision of 13 March 2002, file no. I. 19/02). If an incompatibility is found, the Constitutional Court exercises its power to quash the decision concerned and to award just satisfaction (see, for example, judgments (nález) of 15 July 2003, 19 May 2004 and 12 October 2005, file nos. I. ÚS 23/01, III. ÚS 60/04 and III. ÚS 191/05, respectively).

(c) Status of international instruments on human rights and fundamental freedoms

Ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties (see, for example, the decision of 22 March 2000, file no. I. ÚS 9/00).

(d) Standing of private persons to bring proceedings to review the constitutionality of legislation

Any type of proceedings before the Constitutional Court can only be commenced in a separate set of proceedings and only on the application of persons or bodies which have standing to initiate them. No type of constitutional proceedings can be instituted within proceedings of another type. An examination of a complaint under Article 127 of the Constitution cannot entail a review of the constitutionality of legislation (see, for example, decision of 6 February 2002, file no. II. ÚS 5/02).

COMPLAINT

The applicant company complained under Article 1 of Protocol No. 1 of the duty to provide assistance to the SIS in respect of its interception operations and, in particular, the duty to finance the interception equipment, which had been imposed on it by the applicable legislation, namely the Telecommunications Act of 2000, as interpreted and applied at domestic level.

THE LAW

The applicant company complained of the duty imposed on it to provide the SIS with assistance in connection with its interception operations and finance the interception equipment. It relied on Article 1 of Protocol No. 1, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government contended, firstly, that the application had been introduced out of time. They pointed out that the application concerned the applicant company’s duty to finance the interception equipment. That duty stemmed directly from statute. In the Government’s view, this duty had already existed as a statutory duty under the Telecommunications Act of 1964. It had therefore applied to the applicant company from the very start of its operations in the telecommunications business. The duty had then been clearly stated in the Telecommunications Act of 2000, which had entered into force on 1 July 2000, that is, more than six months before the introduction of the application.

The Government objected, secondly, that the applicant company had failed to exhaust domestic remedies in that it had not raised its Convention complaints in the Constitutional Court under Article 127 of the Constitution (as in force from 1 January 2002).

As to the Government’s first objection, the applicant company expressly stated that the essence of the present application was not the duty itself to finance the interception equipment, but rather the scope of that duty as defined by the Telecommunications Office. The applicant company argued that, until the Telecommunications Act of 2000, it had had no statutory liability to finance interception equipment. The payments that the applicant company had made under the 1996 contract and the 1997 annex had been of a contractual nature under private law. A statutory duty to finance interception equipment had first been established by the Telecommunications Act of 2000. However, the specific scope of that duty had been determined by the Telecommunications Office only in 2001. The decision of the Telecommunications Office had then been examined by the Supreme Court and its decision had become final on 13 June 2002, that is, within the six-month time-limit prescribed by Article 35 § 1 of the Convention.

As to the Government’s second argument, the applicant company contended that a complaint under Article 127 of the Constitution had not been practically available in the circumstances of the present case. The said remedy had become available only as from 1 January 2002 and could not be used retroactively in respect of decisions of the Office which had been taken prior to that date. Furthermore, the Constitutional Court had no jurisdiction to review the findings and conclusions of the Supreme Court. Finally, the applicant company argued that it had no power to initiate a review of the compliance of the relevant provisions of the Telecommunications Act of 2000 with the Constitution and the Convention.

The Court observes that the essence of the present application is the payments which the applicant company had to make for the extension of the interception equipment following the authorisation of that extension by the Telecommunications Office in 2001. It is true that the legal basis for the duty to make those payments originated directly from the Telecommunications Act of 2000. However, as the applicant company expressly stated, the existence of this duty as such is not the object of its complaint. The applicant company rather sought to challenge the scope of this duty, which had not been ascertainable until authorisation was given by the Telecommunications Office in 2001. The Slovakian legal order provided for an ordinary remedy against the decision of the Telecommunications Office, namely an administrative‑law action in the Supreme Court. The applicant company used that remedy unsuccessfully, the Supreme Court’s decision becoming final on 13 June 2002. The application was introduced on 6 December 2002. Consequently, it cannot be rejected as being out of time for the purposes of Article 35 § 1 of the Convention.

As to the requirement to exhaust domestic remedies, pursuant to Article 35 § 1 of the Convention, the Court reiterates that it obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged (see, for example, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, §§ 65-67). The existence of mere doubts as to the prospects of success of a particular remedy, which is not obviously futile, is not a valid reason for failing to exhaust domestic remedies (see, for example, Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 37).

In the present case the question arises whether, for the purposes of Article 35 § 1 of the Convention, the applicant company should have lodged its Convention complaints with the Constitutional Court under Article 127 of the Convention, as in force from 1 January 2002 (see Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002‑IX).

The Court observes that although the Telecommunications Office authorised the extension in question in 2001, the matter became final only after the determination of the applicant company’s administrative-law action in 2002. At that time the remedy in question already existed. Considering, as a whole, the proceedings and decisions concerning the extension of the interception equipment, the Court has found no reasons to assume a priori and in general that it was impossible for the applicant company to lodge under Article 127 of the Constitution the complaints that it is now making before the Court.

It also notes that, according to the Constitutional Court, it is primarily for the ordinary courts to afford legal protection to basic rights and fundamental freedoms of individuals. The Constitutional Court does not normally review findings of fact or conclusions relating to the interpretation and application of the law by the ordinary courts. It does, however, review their decisions if these are manifestly ill-founded or arbitrary. Furthermore, the Constitutional Court does examine whether the effect of the ordinary courts’ decisions complies with the Constitution and the applicable international instruments.

In the present case the applicant company asserted its property rights and raised its constitutional and Convention arguments in the Supreme Court. Its action was dismissed and, accordingly, the scope of the applicant company’s duty to finance the extended interception equipment was upheld with final effect. The Supreme Court did not address at all the applicant company’s complaint of a violation of its rights under Article 1 of Protocol No. 1. Its decision could thus arguably be challenged on grounds of arbitrariness and incompatibility of its effects with the Article relied on. The Court finds no reasons why the decision could not be challenged in the Constitutional Court under Article 127 of the Constitution, as in force from 1 January 2002. The applicant company has not challenged it under that provision, however.

It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention; and

Declares the application inadmissible.

Françoise Elens-Passos Nicolas BRATZA
Deputy Registrar President